American Federalism: Origins
DECEMBER 01, 1966 by GEORGE CHARLES ROCHE III
Dr. Roche, who has taught history and philosophy at the Colorado School of Mines, now is a member of the staff of the Foundation for Economic Education.
A disciple of Confucius once asked the ancient Chinese sage what his first act would be should he become emperor. Confucius replied that he would begin by fixing the meaning of words. What he was suggesting, of course, was that labels with consistent meaning are essential for effective communication. The label to be defined in this case is "federalism," more specifically, "American federalism."
In its narrower sense, federalism refers to the division of authority and function between and among the national government and the various state governments. But it has come to possess a wider meaning in American political history. The idea of constitutional limitations of power, of both horizontal and vertical divisions of power, of the representative nature of republican institutions, and of a national government strong enough to perform certain necessary tasks and yet not so strong as to become a threat to liberty, is perhaps better epitomized in its unique American historical setting by the word federalism than by any other single term. Above all, federalism in its American context conveys something of our high regard for regional, local, and individual diversity, widely varied yet capable of achieving a simultaneous national unity.
Such concepts as republican government or limited, constitutional government have come to be regarded as implying only restriction of power and seem to too many people to be entirely negative in character. The limitation of power in our republican, constitutional framework is vitally important, but such concepts may be more warmly received if they are approached not only in terms of what we can’t do politically, but also in terms of what we can do politically. For these reasons, and with all due apology for expecting so much from the word, let us assume this broadened meaning of the word federalism for purposes of this discussion.
In fact, American political forms are unique, partially because of the great opportunities which America has enjoyed on this continent and partially from what Daniel Boorstin has described as "a peculiar and unrepeatable combination of historical circumstances."’ To fail to consider these unique circumstances would be, to paraphrase Edmund Burke, a failure to consider our liberties as an inheritance. That inheritance is indeed the source of our liberty and we can ignore it only at great peril. This is precisely the failing of so many among us in this present-minded, antitraditional age of the collective mentality.
Americans are not given to political abstraction. In the modern era since the French Revolution, the planners — Rousseau, Marx, and the rest — have increasingly sought to remake society in their own image. In the face of this challenge, whether or not our present-minded, antitraditional intellectuals care to admit it, America has increasingly provided the modern world’s best example not only of historical continuity but also of the benefits which stem from molding political institutions with one eye on the past. Again and again the world has learned to its sorrow that constitutions are easily written, but meaningless unless they are the product of a nation’s historical experience.
Reconciliation of Freedom and Order a Continuing Problem
Man’s political problem remains forever the same: the reconciliation of freedom and order. The uniquely American solution to this tension between freedom and order has been federalism, blending as it does these two contradictory elements, both so necessary for a creative society. Both the individual and his society profit when these creative forces are released by freedom and protected by order. This is another way of saying that man’s creativity is enhanced by an equality of opportunity, an opportunity to be free to achieve and yet safe in his achievements.
The next problem of government centers on how to achieve this equality of opportunity through (or in spite of) our political processes. Alexis de Tocqueville long ago saw clearly that there are only two ways of establishing political equality: "rights must be given to every citizen, or none at all to anyone…. it is, therefore, very difficult to discover a medium between the sovereignty of all and the absolute power of one man…. The Anglo-Americans are the first nation who, having been exposed to this formidable alternative, have been happy enough to escape the dominion of absolute power. They have been allowed by their circumstances, their origin, their intelligence, and especially by their morals to establish and maintain the sovereignty of the people."²
What, then, limits the sovereignty of the people? The American answer was a written constitution. The point of a constitution is to lay down fundamental principles limiting everyone, majorities as well as minorities, to playing the game by a fixed set of rules. As F. A. Hayek has phrased it: "A group of men can form a society capable of making laws because they already share common beliefs which make discussion and persuasion possible and to which the articulated rules must conform in order to be accepted as legitimate."3
What are these rules by which Americans have traditionally chosen to play the game? What concepts did the Founding Fathers espouse? How have these concepts been applied throughout American history? These are the questions we must answer if we are to understand and apply the American tradition of federalism.
The Roots of the American Political Tradition
"A government of laws, not of men." Such was the popular slogan of the generation of Americans that produced the American Revolution. By the second half of the eighteenth century, most American colonists were convinced that the men who ran the government should be limited by law in their exercise of power. One of the leaders of the North Carolina Regulators, writing shortly before the American Revolution, made the colonial feeling quite clear: "If we are all rogues, there must be Law, and all we want is to be Governed by Law, and not by the will of Officers, which to us is perfectly despotic and arbitrary."4
The two institutions through which the colonists hoped to achieve "a government of laws, not of men" were written constitutions and standing law. Though the American doctrine of constitutionalism owed a great deal to English precedents, the colonists had done much to broaden and extend the concept still further. A number of state constitutions were put into effect between 1776 and 1780 that clearly foreshadowed the Federal Constitution of 1787. Attempts at defining the specific area of governmental authority were already an old concept in America dating from the Mayflower Compact and the Fundamental Orders of Connecticut, both already on the books fully 150 years before our Federal Constitution. Most of these numerous American efforts in constitution-making also usually included specific acknowledgment of individual liberties and immunities, a concept that would eventually produce our Bill of Rights.
If Americans emphasized written constitutions, they also emphasized standing law, usually drawn from the English Common Law. This legalistic heritage simultaneously emphasized two concepts: the traditional liberties of the English subject and a strong emphasis upon the rights of property. American colonial history is filled with the discussion and implementation of these concepts.
If Americans early displayed a strong interest in laws and institutions limiting the exercise of political authority, they also pioneered in the development of self-sustaining institutions for local government. Since colonial government was so local, it is natural that it varied widely from colony to colony and region to region. But with all the variations in form that were present within the colonies, one fact remains clear: the colonists were to a very large extent running their own affairs.
As Charles M. Andrews, dean of American colonial historians, has concluded: "In the development of American political ideas and social practices the influence of the popular assembly… is the most potent single factor underlying our American system of government. "5 What impact did this local self-government have? In the words of Clinton Rossiter, "these institutions taught the colonists one more sturdy lesson in freedom from pomp and arbitrary power."6
Limited and Local Power
The colonists, then, were achieving their "government of laws, not of men," first by strict legal limitation of governmental power and second by keeping the exercise of that power close to home. As England made its mid-eighteenth century attempt to tighten control over the colonies, the mother country violated both the ideals of limited governmental authority and local self-government, by increasing the arbitrary power of government while moving the exercise of that power further from the colonies. The colonists thought of themselves as good Englishmen, and many of them worked to maintain their political tradition while still remaining Englishmen. This is the basis of the federal system operating within the British empire that Franklin advocated in his Albany Plan of Union in 1756.
There need be no doubt of the vitality of the American tradition of federalism in colonial times. We need only compare the liberties of the individual and the strength of self-government in the English colonies of the seventeenth and eighteenth centuries with the centralization and arbitrary exercise of governmental power present at the same time in the French and Spanish colonies of the New World. Tocqueville grasped the essence of the political heritage that gave strength and validity to the American experiment: "The general principles which are the groundwork of modern constitutions, principles which, in the seventeenth century, were imperfectly known in Europe and not completely triumphant even in Great Britain, were all recognized and established by the laws of New England: the intervention of the people in public affairs, the free voting of taxes, the responsibility of the agents of power, personal liberty, and trial by jury were all positively established without discussion. [Thus occurredl… the germ and gradual development of that township independence which is the light and mainspring of American liberty at the present day…. In America… it may be said that the township was organized before the county, the county before the state, the state before the union."7
A Revolution Prevented
When the British failed to see the colonial position, the American Revolution finally occurred. Yet in a very real sense Burke was right when he described the American War for Independence as "a revolution not made, but prevented." The radical change of the late eighteenth century was less in American self-government than in the Johnny-come-lately attempted British interference with that self-government. From the beginning of the War for Independence the colonists presented a most peculiar aspect for revolutionaries. They appealed to tradition, the common law, British custom, colonial practice, and property rights; hardly a collection of radical ideals!
The antitraditional, present-mindedness of many modern scholars has produced a view of the American Revolution that overlooks the colonial American heritage of limited, constitutional government. Those who suggest that the American Revolution was only another egalitarian leveling process similar to the French Revolution must overlook the middle class and aristocratic leadership of the American Revolution, its respect for law and property rights, and its concern for maintaining a 150-year-old heritage of local self-government.
The attempt to make the Declaration of Independence into a Declaration of the Rights of Man amounts to little more than an attempt to misread a bill of indictment against the king, written in the language of British constitutionalism, until it is twisted into some sort of manifesto for the overthrow of the old order. It was precisely the preservation of the old order for which the colonists were striving. One of the pamphleteers of the Revolution, James Otis, epitomized this colonial stance in his The Rights of the British Colonies (1764) when he advocated what might be called "revolution by due process of law." The Declaration of Independence itself attacks usurpation and centralization of authority, calling it tyranny: "He has erected a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws."
"Endowed by Their Creator"
Even though the colonists were drawing on 150 years of historical experience in asserting their position, they were also building upon that heritage to produce a very different sort of nation than the world had previously seen. This was the real American Revolution. For the first time in history, no authoritarian control would be tolerated in this new political order. "Men are endowed by their Creator with certain inalienable rights," the Declaration of Independence announced to the world.
If men are endowed "by their Creator" with these rights, it follows that God and not government is sovereign, and therefore that government must be without authority to interfere with "certain inalienable rights," such as self-government and sustenance; that s, the right to freedom, and the right to property as a means of making that freedom meaningful. What the Declaration of Independence outlined was made specific in the Constitution’s Bill of Rights which placed restrictions not upon the citizen but upon the government, limiting the role of governmental power over the individual citizen in some 46 specific instances.
The interim between the Declaration of Independence and the Constitution clearly foreshadowed the coming federal constitution in the development of state constitutions and the various bills of rights attached to them. The Founding Fathers derived their principles of limiting government and protecting individual rights from a belief in natural law; that is, a belief that God had ordained a framework of individual dignity and responsibility that was to serve as the basis for all human law and as the root assumption behind a written constitution.
Conforming Man’s Laws to the Natural Order
Professor Edward S. Corwin’s The "Higher Law" Background of American Constitutional Law has examined this basic American assumption in considerable detail. Such an assumption is quite different from the "consent of the governed" theories that motivated the French Revolution and its aftermath. The difference, quite simply, is that Americans were assuming certain fixed principles that limited anyone, majorities included, in the exercise of their power. The Declaration of Independence has spoken of "the Laws of Nature and of Nature’s God" and of a "firm reliance on the protection of Divine Providence." A few years later, the Preamble to the new Constitution was to begin, "This nation under God…" Thus, the liberties of the individual were felt to be inseparable from a belief in an authority above man. Viewing America several decades later, Tocqueville agreed with the American experiment when he suggested that "liberty cannot be established without morality nor morality without faith."8
This deeply abiding faith in God as the ultimate source of human dignity presupposed that man was insufficient unto himself, that some abstract blueprint for a perfect society might ultimately prove disastrous even if advocated by a majority of men. So, unlike the documents of the philosopher and their French Revolution, the Declaration of Independence and the Constitution were firmly grounded in specific historical instances and carefully avoided the vast egotism always evidenced by men who would remake the world.
The distinguished group of men who came together at Philadelphia in 1787 were up against the same old political problem: freedom and order. As James Wilson expressed it, "Bad governments are of two sorts — first, that which does too little; secondly, that which does too much; that which fails through weakness, and that which destroys through oppression."
The Confederation period had shown the new union of states that a central government was necessary, that power was required to run a nation effectively. The Founding Fathers provided that power to establish a system which has survived repeated internal and external crises in the last 180 years.
People are fond of pointing out how much America has changed. In terms of historical continuity, it is more remarkable how much America has remained the same through two centuries of existence in a world torn with violent political upheaval. We still have a President, a Congress, a Supreme Court, and Electoral College, a network of separate state and local governments, and most of the forms passed on to us by the Constitution. Surely, despite all our problems and despite the changes which have occurred within our system, great strength must be embodied within such a lasting framework.
The Diffusion of Power
The key to that constitutional vitality, the answer to the dilemma that all power was to be distrusted and yet had to be exercised somewhere for the nation to survive, lies in the familiar concept of "divided powers" and "checks and balances." This diffusion of power made our system a representative republic rather than a democracy. The Founding Fathers are, of course, scrupulously clear on this point, and a statement of such an assumption occurs repeatedly in both the debates of the Constitutional Convention and the later public statements of the participants.
Felix Morley has originated a valuable distinction to clarify the word "democracy." He divides the concept into political democracy and social democracy. Viewed in this light, it is clear that the innumerable roadblocks thrown up in the path of the majority by the Founding Fathers in their writing of the Federal Constitution and their creation of American federalism were not intended to set up a political democracy. Yet America has traditionally been the land of great social mobility and individual opportunity, that is to say, a social democracy. Thus, the American tradition of federalism has deliberately limited the exercise of political power, not to suppress individual liberty, but to enhance it. Put another way, the very real success story of America has hinged upon the limitation of political power rather than its exercise.
This nation has been consistently hostile to monopoly power, whether social, religious, or political. The Constitution outlawed titles of nobility (social monopoly) and an established church (religious monopoly), and made a particular point of outlawing excessive centralization of political power, as for example in the Ninth and Tenth Amendments to the Constitution:
Ninth: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Tenth: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people."
The American federal system was already quite well developed by the time of the Constitutional Convention. The thirteen colonies were separately established and by the time of the War for Independence had developed widely differing political and social customs. Only a system of federalism that recognized and protected these diversities could hope to unite the various factions and units. But that unifying effort was only one of the reasons for the American federal system. As Felix Morley explains it: "But behind the determination to keep the rights of the several states inviolate, was the even deeper determination to protect the citizens of these states from centralized governmental oppression. That is why the Republic was established not only as a federation of semi-sovereign states, but also as one of balanced authority in which it would be extremely difficult to establish a nationwide monopoly power of any kind."¹º
"Inefficiency" by Design
On the whole, the system has worked. The tendency of one branch of government to gather all power unto itself has usually been slowed by the inertia of the other centers of power. Critics of the system call this inefficiency, but it is an inefficiency which has produced and preserved a greater productive capacity for the satisfaction of human wants and a greater area of individual freedom than any other system in the history of the world. The key to this system of American federalism has been the recognition that government is not the source of rights for the individual and that extension of governmental authority is therefore a potential menace to human rights.
To accept the modern statist position that the government is the source and protector of human rights is ultimately to reduce the individual to the level of a mass man, simply because it removes all qualitative distinctions between and among individual citizens. When this happens, human personality and the institutions built upon widely differing human personalities are swept away in a nameless, faceless, pointless whirl. It is just such a tragedy that the American system of federalism was designed to prevent.
In fact, American federalism has gone a good deal further than the mere structure of federalism itself requires; for example, in the horizontal as well as vertical separation of political authority. The obvious advantage of federalism has rested in its ability to avoid dangers inherent in government by remote control. So long as local affairs are reserved to the greatest possible extent for the localities themselves and so long as the people are both interested in and capable of understanding and handling their own problems, then the philosopher’s stone has indeed been discovered and a large measure of both freedom and order are possible.
The weakness in federalism, its susceptibility to centralization in time of crisis, is also very much in evidence. Yet in the face of this weakness, American federalism has remained tremendously successful. Again in the words of Felix Morley: "The reason lies in a simple paradox. By the adoption of arrangements strongly negative toward the power of government, the Republic has so far permitted and encouraged its citizens to act affirmatively in their own interest. Many Americans do not realize that when first attempted this political plan was extraordinary.…11
One might add that all too many Americans still do not understand how truly extraordinary such a system actually is.
An article to follow next month will deal with the history of American Federalism.
1 Daniel Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1953), p. 1.
2 Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1958), Vol. I, pp. 55-56.
3 F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 181.
4 Clinton Rossiter, The First American Revolution (New York: Harcourt, Brace and Co., 1953), p. 130.
5 Ibid., p. 119.
6 Ibid., p. 124.
7 Tocqueville, Vol. I, p. 41.
8 Ibid., Vol. I, p. 12.
9 James Burnham, Congress and the American Tradition (Chicago: Henry Regnery Co., 1965), p. 64.
10 Felix Morley, Freedom and Federalism (Chicago: Henry Regnery Co., 1959, Gateway ed.), p. 9.
11 Ibid., p. 1.